Unger v. Premier Salons Ltd., 2014 HRTO 64

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Julie Unger

Applicant

-and-

Premier Salons Ltd, Brian Luborsky and Kerry Smiley Morris

Respondents

INTERIM DECISION

Adjudicator: Jay Sengupta

Date: January 15, 2014

Citation: 2014 HRTO 64

Indexed as: Unger v. Premier Salons Ltd.

WRITTEN SUBMISSIONS

Julie Unger, Applicant

Peigi Ross, Counsel

Premier Salons Ltd, Brian Luborsky and Kerry Smiley Morris, Respondents

Miranda Spence, Counsel

Introduction

1This is an Application filed under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to employment because of sex.

2The hearing in this matter is scheduled for January 20, 21 and 22, 2014. The hearing dates were set by way of a Notice of Rescheduled Hearing, dated August 13, 2013, upon consultation with counsel for the applicant and former counsel for the respondents, some five months ago.

3On January 7, 2014, former counsel for the respondents advised that his firm was no longer acting for the respondents.

4On January 14, 2014, less than one week in advance of the first hearing date, the Tribunal received a request from newly retained counsel for the respondents seeking an adjournment of the hearing dates set for next week. Counsel indicates that the reason for the adjournment request is that she is scheduled to be in motions and cross-examinations on the scheduled dates.

5Counsel for the applicant has indicated that her client opposes the adjournment request and has provided submissions in support of her client’s position. Counsel also points out that the respondents have failed to comply with the direction contained in the Tribunal’s Case Assessment Direction, dated December 13, 2013.

6For the reasons that follow, the request for adjournment is denied. Issues surrounding lack of compliance with the December 13, 2013 CAD will be addressed at the commencement of the hearing next Monday along with any other outstanding preliminary matters.

Decision

7The Tribunal’s Practice Direction on Scheduling of Hearings and Mediations, Rescheduling Requests, and Requests for Adjournments states, in part:

The HRTO discourages requests for adjournment outside the 14-day period to request rescheduling of a hearing, described above. Requests for adjournments, particularly at the last minute, are a significant impediment to fair and timely access to justice. Therefore, the HRTO will only grant adjournments in extraordinary circumstances such as illness of a party, witness or representative. Absent exceptional circumstances, the HRTO will not gran adjournments, even when all parties consent.

Where a party seeks to adjourn a previously scheduled mediation or hearing, they must contact the Registrar as soon as the need arises. They must contact the other parties to seek their consent, and to discuss alternative dates for the rescheduling of the mediation or hearing.

The party making the request should contact the Registrar and provide the exceptional circumstances supporting the request and any alternative agreed upon dates. Where the request is on short notice, the party must contact the Registrar by email or fax.

8In addition, on the specific issue of unavailability of counsel, in Vallentyne v. Royal Canadian Legion, 2009 HRTO 534 at paragraph 6, the Tribunal held that the unavailability of counsel was not an extraordinary circumstance justifying an adjournment:

The decision of a party to retain counsel after a hearing is scheduled is not the type of circumstance that would justify a request for an adjournment. Absent exceptional circumstances, a party must find counsel who is available on the date already scheduled…

9The respondents have been aware of the hearing dates since August, 2013. A decision by them to change counsel and retain new counsel who is not available on the hearing dates on the eve of hearing is not an exceptional circumstance that would justify their request for an adjournment.

10In Vallentyne v. Royal Canadian Legion, 2009 HRTO 660, the Tribunal addressed the issue of adjournment requests based on unavailability of counsel and stated at paragraphs 4 and 5:

The Tribunal is committed to the fair, just and expeditious resolution of proceedings before it. It expects to receive thousands of applications each year. The Tribunal has a responsibility to ensure that public resources are used effectively to meet the demands of all parties before the Tribunal. Therefore, when an adjournment request is made, it is not only the interests of the parties to the particular proceeding must consider, but the fact that Tribunal time reserved for the resolution of those parties’ dispute will no longer be used. For that reason, among others, the Tribunal’s Information Bulletin on Scheduling of Hearings and Mediations, Rescheduling Requests and Requests for Adjournments indicates that even adjournment requests made on consent of the parties more than five days after the hearing is scheduled may be denied. The Tribunal has balanced the interests of parties in having hearings scheduled according to their and counsel’s availability with these broader interests by requiring that a party advise within five days that they are unavailable, and providing that requests for adjournment will not otherwise be granted, absent exceptional circumstances.

When a party makes a decision to retain counsel after the notice of hearing has been issued, their “choice” of counsel is limited by the date previously scheduled….

11The parties are directed to attend the hearing on the dates already specified by the Tribunal and to be prepared to proceed with the hearing.